Governor Whitmer Says Yes. Legislature Says No. Where’s The Judge?

The Michigan State House of Representatives, controlled by majority Republicans, led the way yesterday. The House is refusing to extend the Governor’s emergency declaration and shutdown order. Within hours, the Republican-controlled State Senate followed suit. Democratic Governor Gretchen Whitmer earlier in the week announced a two-week shutdown extension on her own through the middle of this new month. But then she asked the legislature for a 28-day extension of her emergency declaration. The Democratic Governor though says she does not need the legislature's support to keep her shutdown and emergency order in effect. And late yesterday, Governor Whitmer acknowledged she had no legislative support and promptly announced her emergency order now extends through the end of the month. The Governor’s latest decision is the 69th Executive Order she has initiated since the virus surge began last month. The Governor says the closing order affecting theatres, bars, casinos, fitness centers, and other places of business listed in the original order remains in effect. The legitimacy challenge from state Republican legislators now raises the question who do you believe and follow?

There seem to be conflicting state laws. Two from early last century, the Governor references, seem to allow endless emergency declarations from a Governor. A later law the Republicans point out, from the 1970’s, requires legislative approval for emergency orders past their original time frame of 28 days. Along with refusing to grant the shutdown extension, the house is giving Speaker Lee Chatfield the authority to seek a court order to stop the Governor from trying to enforce her unilateral shutdown. The resolution allows Speaker Chatfield to file a lawsuit, "challenging the authority and actions of the governor, and the executive branch generally, taken during the COVID-19 pandemic."

The State House is also approving bills that would continue many aspects of the virus controls initiated by the Governor, things like extending tax filing deadlines. And the lower chamber is voting to reduce violations of Executive Orders to a civil infraction. Violators now face a misdemeanor.

The legislature is now waiting for the expected veto of the bills by the Governor, setting up a court filing which is no doubt ready to go, seeking an immediate hearing and emergency ruling. Some political observers at the capitol are wondering if the legislature will seek support from the US Department of Justice. The DOJ announced earlier in the week that it is investigating the legality and constitutionality of state shutdown orders, including here in Michigan. No one in the legislature is promoting open defiance of the home quarantine order from the Governor - at least not yet.